Collective victimisation in post-conflict situations: XI International Symposium on Victimology Stellenbosch, July 13-18, 2003 Collective victimisation in post-conflict situations: in search of a restorative justice approach for countries in transition Kris Vanspauwen Prof. Dr. S. Parmentier and Prof. Dr. E.G.M. Weitekamp Katholieke Universiteit Leuven, Belgium

Collective victimization in post-conflict situations Past century: numerous violent conflicts – Balint: 220 conflicts, 87 million deaths Conflicts: armed conflicts, civil wars, ethnic conflicts, (post-)colonisation, state divisions, national liberations, apartheid regimes, religious conflicts, oppressive (authoritarian) regimes, etc. Societal problem

Defining “collective victimization” “victimization directed at, or affecting, not only individuals but also whole groups. In some cases the groups are very diffuse, the members have nothing or not much in common, and the group is not targeted as a specific entity. More often, however, the acts of victimization are directed against a special population” (Fattah, 1991)

Collective victimization and redress Empirical studies: enormous gap between the data of victimization and redress that has been addressed in these situations.

Collective victimization and redress Societal problem Intense debate: how successor regimes should confront a legacy of violence and abuse of power

Dealing with the past Dominant voices: punishment vs. amnesia models Third way: reconciliation, truth commissions Growing interest in this field has lead to a new discipline called “transitional justice”

Defining “transitional justice” “Transitional justice has been characterized as the study of the choices made and the quality of justice rendered when states are replacing authoritarian regimes by democratic state institutions. In almost all of these regimes gross violations of human rights took place.” (Siegel, 1998)

Victims and transitional justice Trend of liberalisation: economic and political motives Victims’ concerns overlooked In search for holistic approach TRC: first attempt to incorporate restorative justice Scientific research: restorative justice vaguely discussed

Restorative justice rediscovered Rediscovery of traditional and informal forms of justice and dealing with (criminal) conflicts Dominant model of criminal justice in human history for perhaps all the world’s people

Merits of restorative justice Merits of informal modes of dispute resolution doubted - confusion subject matter Literature is practice-based Several definitions of restorative justice. There is consensus on following definitions

Defining “restorative justice” “Restorative justice is a process whereby parties with a stake in a specific offence resolve collectively how to deal with the aftermath of the offence and its implications for the future (Marshall, 1996)” “Restorative Justice is every action that is primarily oriented towards doing justice by repairing the harm that has been caused by the crime (Bazemore and Walgrave, 1999)”

Key principles Bringing victims and offenders together Focusing on the harm that has been caused by crime Holding perpetrators responsible for their acts Meeting the needs for victims’ redress Promoting the reintegration of both victims and perpetrators Preventing future harm by building on the strengths of the community and government

Rethinking restorative justice concepts Key principles in post-conflict situations? State as perpetrator, political crimes? Universal jurisdiction on gross human rights violations, war crimes, genocide, crimes against humanity Human rights focus on broader issues Broaden up the scope of restorative justice, beyond the level of personalised and common crimes

Transitional justice developments End of 20th Century: different strategies and judicial mechanisms were being developed: Domestic criminal courts International ad-hoc tribunals (Rwanda, Yugoslavia) International criminal court (The Hague) Mixed tribunals (East Timor, Siera Leone) Truth Commissions (Guatemala, Chile, South Africa) Mixed approach: truth commission & (international) tribunals

Future challenges Truth commissions bear the most restorative justice potential since they make an attempt to: Bring victims and perpetrators together Hold perpetrators accountable Challenges: Include ALL stakeholders together Meet victims’ needs Reintegration of victims and perpetrators Build stronger communities and governance

Framing truth commissions within the restorative justice theory Empirical data somewhat validated normative research. Restorative justice model: Social Discipline Window, Stakeholder Needs, Restorative Justice Typology. This model is based on restorative justice practices like: victim-offender mediation, family group conferencings, etc. This model ends up to be impractical to frame transitional justice processes.

Social Discipline Window Restorative justice as a collaborative approach to resolve problems intended to reintegrate and repair

Stakeholder Needs Those affected by the crime must regain their sense of autonomy - empowerment

Restorative Justice Typology The extent to which all stakeholders are involved in meaningful emotional exchange and decision-making.

Transitional justice and the social discipline window One approach: not most desirable? Mixed approach: trials – mediation – truth commission – compensation funds ... Braithwaite’s restorative regulation pyramid? TRC: amnesty rule: no apology, no sign of remorse was necessary. permissive instead of restorative approach

Transitional justice and the restorative regulation pyramid Post-conflict situations (Braithwaite, 2002)

Transitional justice and the stakeholder needs Identify stakeholders: very few people not affected Limited definition of victims: victims of gross human rights violations TRC: huge amount felt disappointed and felt neglected – victims of every day apartheid policies, victimised combatants, victims of structural violence, displaced and forcedly removed people, ...

Transitional justice and the stakeholder needs TRC: ongoing violent conflicts between IFP and ANC were denied – IFP as important stakeholder not fully included in the TRC TRC: beneficiaries not heavily involved so structural evil of apartheid not considered. Social unjust practices continue to some extent after the transition.

Transitional justice and the stakeholder needs Post-conflict situations

Transitional justice and the restorative justice typology The meaningful victim-perpetrator encounter shows to be of invaluable importance Victim’s input, decision making TRC: imposition of views and frameworks on victims – hearings were often structured, directional

Transitional justice and the restorative justice typology TRC: victims no key player in amnesty hearings – feelings of anger and retribution should get an important place in the process TRC: lack of knowledge on victims’ expectations beforehand, background, motivations ... Difficult to assess the restorativeness TRC: amnesty rule – missed chance, perpetrators could have made personal contribution to restoration victim’s well-being

Transitional justice and the restorative justice typology Post-conflict situations

Towards a restorative transitional justice? Truth commission no “second best” solutions Despite the critical analysis, truth commissions can be shaped into restorative justice mechanisms No general conclusions yet Taking into account the following sensitivities: The history of the conflict; The culture of the nation and its conflicting parties; The politics of the conflict; The specific context in which the conflict occurred.

Towards a restorative transitional justice? A Restorative Justice Model for successful transitions will risk jeopardising the restorative potentials that are present in every culture or society South Africa followed his own road towards reconciliation However it will be a catalyst for other societies!

Towards a restorative transitional justice? Restorative approach counterforce to imposing Western cultural values and norms(retributive justice) and mechanisms (trials) Restorative justice is about understanding and dealing with root causes of mass violence Restorative justice is about dealing with the real harm found in broken families, destroyed communities, refugees and internatlly displaced people, every day life. Therefore limit ourselves to selective trials and rediscover our restorative capacities on the road towards reconciliation.